Ken Garten: Same-sex marriage laws being challenged all over nation

Saturday

May 17, 2014 at 11:14 AM

Lawsuits challenging the constitutionality of state law bans on same-sex marriage are making headlines all around, and courts nationwide seem to be aligned with the view that parties of the same sex have the same fundamental right to enjoy the benefits and privileges of marriage as anyone.

Arkansas, of all states, is the most recent to so chime in.

These cases are generally arising piecemeal, state by state, as yet, but sooner or later, it seems, the U.S. Supreme Court will have to weigh in on the issue, to establish constitutional policy for all of the United States, whether states may constitutionally ban same-sex marriage, or if such bans violate the Equal Protection Clause and are struck down.

Sixty years ago, the Court plowed similar ground in finding as a matter of constitutional law that racial segregation in public education, a widespread practice that was firmly ingrained as the law of the land in many parts of the country, was unconstitutional, in the landmark case of Brown v. Board of Education.

Talk about an earth-shattering ruling for many a good old boy from the Deep South at the time, who must have viewed it as an attack on the only way of life they had ever known.

But now, such a policy of racial discrimination in public education would seem immoral and ridiculous.

I can't help but think that the issue of gay marriage is headed for the same treatment, sooner or later, and it is an issue of such social significance at this point in time that it would seem our Supreme Court would have to address it.

Last year, the U.S. Supreme Court did strike down a portion of the Federal Defense of Marriage Act, by a 5-4 vote, with fervent dissent from the right wing minority, in the Case of United States v. Windsor.

And while this decision clearly tends to express a policy in favor of the rights of same-sex couples, this decision does not go so far as to say same-sex couples have the same right to marry as anyone else, that marriage and divorce laws apply the same to same-sex and heterosexual couples, and that state laws prohibiting same sex-marriage are per se unconstitutional, and of no force and effect.

Instead, the Supreme Court's decision in Windsor was limited so as to give a certain level of nationwide dignity only to lawful same-sex marriages that were performed in that minority of states that permit them.

Plus, 5-4 decisions like this, which is often the way of the Court these days, seem to have a certain watered down quality to them that falls short of the policy mandate one would hope to derive from a landmark Supreme Court decision.

As for Missouri, in 2001 our state legislature enacted House Bill No. 157, now codified as Section 451.022 of the Revised Statutes of Missouri, which states: “It is the public policy of this state to recognize marriage only between a man and a woman…. Any purported marriage not between a man and a woman is invalid…. No recorder shall issue a marriage license, except to a man and a woman…. A marriage between persons of the same sex will not be recognized for any purpose in this state even when valid where contracted.”

Seems pretty clear.

So far, no appellate court has addressed whether Missouri's statute is unconstitutional.

Time will tell where this will go.

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com